When a Public Prosecutor Conducts Trial by Television

When a client’s fate has been decided, a defence lawyer needs all the means at his disposal, says Saurav Datta.

Unbecoming Conduct

• A public prosecutor cannot claim the same right as a defence lawyer because his “extrajudicial” comments can imperil a person’s fundamental right to a fair trial
• In media interviews Ujjwal Nikam misrepresents and mangles the truth about cases
• He has resorted to lies in the trial of Yakub Memon
• A prosecutor in terror trials has all the power and authority to strike hard blows, but not foul ones
• His actions are efforts to unduly influence the court

If Ujjwal Nikam was a defence lawyer who usually represents and defends those condemned as the most odious, his sustained media campaign wouldn’t have raised anyone’s hackles. Instead, one could argue quite assertively that it was his right. An accused in a high-profile terrorism case usually has society’s opprobrium stacked against him, while the State gears up its machinery to “bring him to justice”, ensure he is given the strictest penalty.

In that situation, when his client’s fate has already been decided by, and in the media, a defence lawyer needs all the means at his disposal. But a public prosecutor cannot claim the same right, because his “extrajudicial” comments, especially when they come laden with incendiary rhetoric, can imperil, and indeed derail a person’s fundamental right to a fair trial.

Even if he has already been condemned to death by the Supreme Court once, Yakub Memon still has a chance to live, because his curative petition is to be heard on July 21. So, legally, the case isn’t over. And surely, Ujjwal
Nikam has already faced flak for his “biryani” confession, but remains unashamed and unrepentant. As I had written at that time, his actions were nothing short of perjury.

Because he got away with no punishment or even a stricture from the courts or government, Nikam is back to doing what he is most notorious for – media interviews in which he misrepresents and mangles the truth.

Dramatic Falsehoods

In 2011, the International Centre for Counter-Terrorism at The Hague hosted a panel of experts to discuss and deliberate on “Terrorism Trials as Theatre”. Nikam presented a paper on his own feats and achievements, highlighting his role in sending Kasab to the gallows. He blithely claimed that it wasn’t a media trial, nor were politics involved. Religion, he stated, was the only important factor.

A July 15 report has Nikam recounting the arguments he made in court. That Memon didn’t return or surrender voluntarily, but was caught by the intelligence agencies with the help of foreign investigators. This is one aspect of the case which still continues to be a mystery, with both sides vehemently denying the other’s claim, so let’s give Nikam the benefit of doubt.

But then, what about his use of ‘perhaps’ in the next sentence? He must have read the Supreme Court’s March 21, 2013, judgment upholding Memon’s death sentence. But despite that, he claims that maybe the court sentenced Kasab to the gallows because it deemed that those threatening the nation’s integrity didn’t deserve any mercy. He also claims that Yakub’s relationship with his notorious brother Tiger Memon had no role in his conviction and sentencing; his role in the conspiracy was “very prominent” and that was sufficient for the court.

The first claim is a distortion of facts, because the court held that Yakub was “one of the driving spirits” of the conspiracy and that he was in a “dominant position” as compared to the other accused – the foot soldiers, the minions, who had actually planted the bombs. Nowhere do the judges say that Yakub played a “prominent” role.

The second claim is a blatant lie. Paragraph 496, from which the court starts weighing the aggravating and mitigating circumstances, begins: “A-1 (Yakub) is the younger brother of Tiger Memon (AA, absconding accused), who is one of the masterminds behind the blasts.”

Jingoism Forever

In a July 16 interview Nikam claims that none of the accused complained about the painfully long time the trial took to be completed because they knew they were guilty and would inevitably be sentenced. And then “they wanted the facilities offered to undertrials. So they wanted the delay.” Even though this sounds a bit garbled – Nikam is prone to outbursts of soaring, bruising rhetoric, but it does contain a whiff of his biryani lie against Kasab – as if many of the accused, poor and illiterate Muslims, wanted to enjoy the hospitality and comfort of prisons, at the taxpayers’ expense. Despite being traitors and murderers.

Accusing Majeed Memon, who once represented Yakub, of insulting the judiciary and eroding people’s faith in the justice delivery system, he stresses that the “historic” death sentence must be carried out. And, of course, that Memon’s remark – that Yakub’s religion determined his fate – would drive a wedge between Hindus and Muslims. Did the irony meters just explode?

A prosecutor in terror trials has all the power and authority to strike hard blows, but not foul ones. Nikam’s rants would have been still okay if he was representing the Maharashtra government in the curative petition, but he isn’t. Therefore, do his actions not add up as efforts to unduly influence the court?

In the kind of polarised polity that India has at present, Nikam can very well get away by asserting that he is only patriotic, not communal. Could well be true. However, till date he hasn’t denied a 2014 report which cites two people, with considerable evidence, claiming that Nikam had been felicitated twice by Abhinav Bharat – the Hindutva group formally charged with carrying out the Malegaon blasts and other terror attacks on Muslims.

If Ujjwal Nikam is retained as special public prosecutor, the government better redefine “fair trial”.

Disclaimer: The Quint offered an opportunity to Ujjwal Nikam to respond to the article. For this purpose, a copy of the article was emailed to him. Nikam’s response did not come through at the time of publishing.

(Saurav Datta teaches media law and policy in Mumbai and Pune. On twitter: @SauravDatta29)